Orobator v HMP Holloway & Anor

A foreign conviction resulting from a breach of article 6 does not automatically constitute a flagrant denial of justice. The court must examine the trial as a whole and ask whether its deficiencies fundamentally destroyed the fairness of the proceedings or nullified the essence of the article 6 right. Lack of judicial independence or impartiality is relevant but is not conclusive. The threshold is exceptionally high because comprehensive review of foreign convictions would undermine international prisoner-transfer arrangements. The claimant’s serious mistreatment and procedural shortcomings did not meet that threshold.

The claimant was convicted in Laos of possessing and transporting 680 grams of heroin and sentenced to life imprisonment. She consented to transfer to the United Kingdom under the Repatriation of Prisoners Act 1984 and the Prisoner Transfer Agreement.

After transfer, she sought judicial review of the Secretary of State’s refusal to release her and a writ of habeas corpus. She alleged that the Lao proceedings involved a flagrant denial of justice, including lack of judicial independence and impartiality, inadequate legal representation, coercion and inadequate preparation. The central issue was whether her conviction was by a competent court for the purposes of article 5(1)(a) of the ECHR.

1. Claim dismissed. The claimant’s conviction and sentence were not shown to have resulted from a flagrant denial of justice. Her judicial review and habeas corpus claims therefore failed.
2. A flagrant denial of justice is a breach of article 6 so fundamental as to nullify or destroy the essence of the right to a fair trial. The court must examine the particular proceedings critically as a whole. A Contracting State need not conduct comprehensive article 6 scrutiny of a foreign conviction, but it must refuse co-operation where the conviction resulted from such an exceptional denial of justice.
3. The lack of independence or impartiality of the Lao court breached article 6 but did not, by itself, establish a flagrant denial of justice. Relevant factors included the legal framework, the claimant’s presence, interpretation, public trial, representation, opportunity to present a defence, opportunity to speak and availability of an appeal. There was no evidence that the judges had been selected or pressured to secure a conviction.
4. The court’s inadequate reasons did not demonstrate lack of independence or impartiality. The findings that the claimant deliberately took the heroin and intended to transport it indicated rejection of the article 21 defence, although the reasoning was inadequate by domestic standards.
5. The absence of effective legal assistance at earlier stages, oppressive questioning, destruction of preparation notes and alleged incompetence or lack of independence of the lawyer were deplorable but did not nullify the essence of the right to a fair trial. The court declined to decide whether consent to transfer could waive an article 5 breach based on an article 6 breach.
6. For the separate tariff exercise, the court set the minimum term at 18 months.